Supreme Court Chooses SOPA/PIPA Protest Day To Give A Giant Middle Finger To The Public Domain

from the ridiculous dept

We've been talking about the Golan case, and its possible impact on culture, for years. If you're unfamiliar with it, it's the third in a line of cases, starting with the Eldred case, to challenge aspects of copyright law as violating the First Amendment. The key point in the case was questioning whether or not the US could take works out of the public domain and put them under copyright. The US had argued it needed to do this under a trade agreement to make other countries respect our copyrights. Of course, for those who were making use of those public domain works, it sure seemed like a way to unfairly lock up works that belonged to the public. It was difficult to see how retroactively taking works out of the public domain could fit into the traditional contours of copyright law... but today, on the day of the big SOPA/PIPA protests... that's exactly what happened (pdf).

The ruling is ridiculously depressing. The Justices basically just keep repeating the mantra they first set forth in Eldred, that as long as Congress says it's okay -- and that the "fair use" and the "idea/expression" dichotomy remain -- all is just dandy. They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there's nothing wrong with removing works from the public domain. This decision reinforces why the Eldred decision was a complete disaster, and just keeps getting worse. The Eldred ruling basically ignored the fact that copyright had changed entirely in a way that went against the First Amendment... by retroactively granting copyright extension. Now that ruling is being used to take works out of the public domain as well.

First, as with Eldred (and the second case in the trilogy, the Kahle case), I believe that the Court is greatly mistaken in its analysis of copyright law. First it claims that there's little fight between copyright and the First Amendment because the two things were put in place at about the same time. That's a specious argument for a variety of reasons. First, the original copyright law was significantly limited in a way that it was unlikely to really come into conflict with the First Amendment. It was limited to just a few specific areas, and for a very short period of time. It's only now that (1) copyright law has been totally flipped to make just about everything you create covered by copyright, (2) the law has been massively expanded in time and (3) changes in technology make us all create tons of "copyrighted" material all the time -- things have changed an entirely. It's hard to see how the Court can reasonably argue that the traditional contours of copyright law have not changed... but that's exactly what it does. Stunningly, the majority decision here, written by Justice Ginsburg, seems to suggest that there's no First Amendment issue here, because if people want to make use of the works that were previously, but are no longer, in the public domain, they can just buy those rights:

But Congress has not put petitioners in this bind. The question here, as in Eldred, is whether would-be users must pay for their desired use of the author’s expression, or else limit their exploitation to “fair use” of that work. Prokofiev’s Peter and the Wolf could once be performed free of charge; after §514 the right to perform it must be obtained in the marketplace.

It's a really frustrating decision, because it appears to lack any recognition of just how much copyright law has changed and expanded. It seems to lack -- as it did in Eldred -- any sense of how overreaching copyright law is, in fact, stifling free expression everyday. It's a tone deaf response to what's actually happening.

The dissent, by Justice Breyer (with support from Alito), seems to actually understand this. The rest of the Justices (excluding Kagan, who recused herself due to her role in the case prior to joining the court) just don't seem to want to bother to understand. The dissent, however, kicks off with a quote from Thomas Macaulay's famous speech on the problems of copyright, noting that copyright is, by definition, "a tax on readers for the purpose of giving a bounty to writers." They then note that the decision to remove works from the public domain fails to uphold the basic premise of copyright law:

The statute before us, however, does not encourage anyone to produce a single new work. By definition, it bestows monetary rewards only on owners of old works -- works that have already been created and already are in the American public domain. At the same time, the statute inhibits the dissemination of those works, foreign works published abroad after 1923, of which there are many millions, including films, works of art, innumerable photographs, and, of course, books--books that (in the absence of the statute) would assume their rightful places in computer-accessible databases, spreading knowledge throughout the world.

Breyer -- who has always had a much stronger grasp on copyright than his colleagues -- notes that the whole point of copyright law is to encourage new works, and that the Founders themselves recognized that "monopoly is a two-edged sword, that must be wielded carefully. Breyer quotes the early words of James Madison to Thomas Jefferson, that copyright should be granted, but only "in certain cases.... with caution and guarded with strictness agst abuse" and solely such that it acts as "compensation for a benefit actually gained to the community... which the owner might otherwise withhold from public use."

How taking works out of the public domain accomplishes that goal mystifies Breyer (and me and many others).

Separately, he notes that Congress and the Court have both made it clear in the past that copyright is for the benefit of the public, and not solely to grant rights to authors. The granting of monopolies to authors is the method by which the public might benefit, but not the purpose of copyright law. Retroactively seizing works out of the public domain does not benefit the public. And thus, is unconstitutional. Except... to the six justices who chose not to understand copyright law.

That the Supreme Court released this on the same day of widespread protests against overreaching copyright law is a bit of unfortunate irony. The truth is that Congress is the one who could fix this by actually fixing copyright law and making it clear that the Court's interpretation was wrong. But, instead, because Hollywood pays the bills, they only make copyright law worse. While it's easy to blame this ruling on the Supreme Court, it really implicates Congress. And, thus, it's actually depressingly fitting that this ruling came out today.

Reader Comments

Article 1 Section 10

I would hope in the arguments, someone actually told the justices about a very important document of our Constitution. You see, the fact is, copyright has been becoming more of a penalty and everyone has failed to notice why copyright is becoming unconstitutional.

Congress was given copyright to promote more widespread knowledge and learning. However, they don't have to use it. The Supreme Court's role is to understand these laws. If they were truly Originalists, then they can not deny the one section that shows copyright to be unconstitutional as it is:

Clause 1: No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.

The definition of EPF law equates to no retroactive laws, or laws that increase punishments for what was once legal. From the looks of it, we have a Supreme Court that seems intent on following an ideology, not understanding the flaws of copyright in this regard.

Re: Re: Re: Article 1 Section 10

Congress can still step in and change the law.

Dude... “loller-coasters”.

That is the word, right? I mean that is the correct word, “loller-coasters”. I've never used that word before, myself, so I'm not quite sure that I'm using it correctly. But I think I understand what it means. And I think I got the syntax right: “Loller-coasters”.

Re: Re: Re: Article 1 Section 10

Right, and I think that's why the court had to rule the way they did. They cannot simply overrule congress and make decisions about policy. Perhaps if a law did not mention any time frame, something that would violate the constitution. Unfortunately, the constitution is very vague when it comes to copyright which gives a lot of discretion to congress.

Re: Re: Re: Re: Article 1 Section 10

> They cannot simply overrule congress and make decisions about policy.

If they can make up a completely unheard of guaranteed right (privacy) and say it's in the Constitution somewhere... if they can declare that a person's mere existence affects interstate commerce and therefore confers federal jurisdiction over absolutely anything... if they can do those things, then telling Congress that the Copyright Clause doesn't allow them the authority to retroactively seize the public domain is hardly an abuse of judicial power.

Re: Re: Re: Re: Re: Article 1 Section 10

....simply overrule congress and make decisions about policy.

...hardly an abuse of judicial power.

The Supreme Court has not shied away from “making policy” when they thought they could get away with it. OTOH, the court has had a fairly admirable sense of discretion in deciding whether or not they could “get away with it”. At least they have displayed that discretion ever since Scott v Sandford and its aftermath—or maybe it's been since Roosevelt's “court-packing” plan.

Re: Re: Re: Article 1 Section 10

Except that these symphony orchestras are there to perform FOR the public. If the well of material available to them keeps getting emptied, they will get less support from that public.

Even major symphony orchestras rely HEAVILY on public domain works (everything from Byrd and Palestrina to Beethovern and Wagner or currently in the public domain) to stay within a budget (which, unlike our government, they actually stick to).

What this ruling does is effectively make sure that orchestras will play less 20th century (and newer) music each season in order to keep their music budgets in tact. And what this ruling really accomplishes is that less and less of the public will have the opportunity to get exposure to amazing pieces of music that had been available previousy for decades.

This ruling was all about public performances, so I don't know why you bring privacy of your own home into this discussion.

Re: Re: Re: Article 1 Section 10

Listen, today was fun and all. But we did not overload Congress's phone lines all day long. By afternoon, calls were being answered fairly quickly.

As far as the Supreme Court is concerned, well, this is the third in a trilogy of cases that they've taken recently. Eldred, Kahle, and now Golan. It seems unlikely that they will grant cert for another challenge in this generation.

Re: Re: Article 1 Section 10

In any event, the Ex Post Facto clause has been nearly entirely gutted anyway. Thanks to all the stupid crap rammed and rushed through in the guise of protecting the public from "sex offenders," retroactive laws -- including imprisonment on speculation that you might commit a crime -- now rarely violate the Constitution as long as a legislature calls it a "civil remedy" and not "punishment."

The foundations of tyranny are built on the backs of the people nobody cares to protect, and by the time anyone else cares, it's too late.

Re: Re: Bloody Paper

Re: Re: Re: Bloody Paper

I see you have trouble with word definitions.
Here ya go:

drama (usually uncountable; plural dramas or dramata)

A composition, normally in prose, telling a story and intended to be represented by actors impersonating the characters and speaking the dialogue
Such a work for television, radio or the cinema (usually one that is not a comedy)
Theatrical plays in general
A dramatic situation in real life
(slang) Rumor, lying or exaggerated reaction to life events; melodrama; an angry dispute or scene; intrigue or spiteful interpersonal maneuvering.

Re: Re: Re: Bloody Paper

These copy protection extensions effectively make copy protections not last a limited time, which is unconstitutional.

These copy protection extensions do nothing to promote the progress of the sciences and useful arts.

The courts should read the constitution and rule accordingly.

Perhaps if jurors would exercise jury nullification on all copy protections, even ones a day old, in protest of the fact that the public isn't receiving anything back from these laws and that they do nothing to promote the progress and no longer last a limited time, that might encourage congress to actually change the laws to better serve the public interest. What the government and the courts are doing here is outrageous and we need to protest!!!! and if enough jurors participate in jury nullification it could at least serve as a burden to the courts to enforce these laws, even if they attempt to find ways around jury rulings (it still imposes additional resources and costs).

Re:

The creation of at least one new work, however, is not the sole way Congress may promote knowledge and learning. In Eldred, we rejected an argument nearly identical to the one petitioners rehearse. The Eldred petitioners urged that the “CTEA’s extension of existing copyrights categorically fails to ‘promote the Progress of Science,’ . . . because it does not stimulate the creation of new works.” In response to this argument, we held that the Copyright Clause does not demand that each copyright provision, examined discretely, operate to induce new works. Rather, we explained, the Clause “empowers Congress to determine the intellectual property regimes that, overall, in that body’s judgment, will serve the ends of the Clause.” And those permissible ends, we held, extended beyond the creation of new works.

Re: Re:

So the court is claiming that Congress is the ultimate authority over what promotes the progress. Even though retroactive extensions don't create any new works, their overall effect somehow creates new works through some magic mechanism since Congress says so.

Which really doesn't negate the fact that copy protection extensions do nothing to promote the progress and are hence unconstitutional.

But the court can just interpret the constitution however it wants even to the extent of simply ignoring it.

What the courts did here is unconstitutional. There is no way around it, the courts made an unconstitutional decision.

Re: Re: Re: Re:

Re: Re: Re: Re:

"Some anonymous guy on the internet?"

Yes, and I want the government to represent me and others who agree with me no less than they represent IP extremists. If I am to have a representative government then I should voice my opinion, which is what I'm doing.

You can agree with the Supreme court's decision and interpretation and I can disagree. and I disagree and I am voicing my disagreement. Do I claim to be the ultimate authority over constitutional interpretations? No, but I do have an opinion and there is nothing wrong with voicing it. Others who read it can decide for themselves who's opinion has the most merit based on the arguments made, me or yours or the courts. It's called democracy.

When you use a word like “unconstitutional”, what do you want it to mean? The Supreme Court disagrees with you. Most probably Congress disagrees with you. Most likely the President disagrees with you. Most attorneys will disagree with you. And most of your fellow citizens will look at you like you're a sad, pathetic Humpty Dumpty.

"Petitioners also urge that the Government's position would allow Congress to legislate perpetual copyright terms by instituting successive“limited” terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case."

Re:

"Petitioners also urge that the Government's position would allow Congress to legislate perpetual copyright terms by instituting successive“limited” terms as prior terms expire. But as in Eldred, such hypothetical misbehavior is far afield from this case."

So I'm a bit confused by this. I'm reading the ruling and wondering if the headline takes things a little too far? The opinion seems to be talking about taking works out of the public domain to fulfill agreements from various treaties- specifically the Berne Convention, Article 7 where duration is discussed. For example, if I take Book X from France that is 100 years old and falls in public domain in the USA but is still under protection in France for another 15 years, that would take Book X out of US public domain for another 15 years.

When I see the headline I almost think that someone is taking Romeo & Juliet, republishing it and then claiming they own the copyright, ie taking it out of public domain and putting it back in private. I'm not done reading the entire ruling because there are a lot of cases referenced here, but Beyer is correct and the other justices seem to recognize that copyright is about the dissemination rather than the creation, ie create all you want, but the dissemination is why the laws are needed. And that makes sense because I could re-write 3D Studio Max at home as software or record White Collar on TV, but the moment I disseminate or claim (implicit or not) ownership to it in any fashion, that's bad™.

Re: Re: Re: Re:

I hope you were being sarcastic, because "promoting the progress of useful arts and scientists" seems utilitarian to me, not nefarious. Limited copyrights, as long as they're limited, seems to be a fair and utilitarian solution. Copyright Forever is indeed nefarious, however, and was far from the intent of why copyright was included in our constitution.

Re: Re: Re: Re: Re:

Copyright Forever is indeed nefarious

"Copyright Forever" was urged in Millar v Taylor (1769). And James Madison, at least, seems not to have been aware of Donaldson v Beckett, which is perhaps not surpising, as he may have had other things on his mind in 1774, or perhaps even '75 or later before the news first came across the Atlantic.

Re: Re: Re: Re:

I have never heard of the "rule" you reference (a citation would help), but the basic rule I have laid out is at the heart of the law. Copyright "recapture" is limited to only those works that remain under copyright in their countries of origin.

Re: Re: Re:

The people/judges who will be interpreting these rules could very well be the same people that manage to interpret the Constitution to mean that copy protection lengths can continuously get extended and that it can get retroactively extended and somehow this doesn't violate the constitution's limited time or promote the progress clause.

Re:

Your description of the issue at hand directly conflicts with your problem of it.

If a work is under copyright for 100 years in the US, then it should enter the public domain Jan 1 of 101st year after creation. Just because copyrights last for 115 years in France, that should not be a reason to deny the public access in the US.

To take this to an extreme, what is a country decides that copyright should last forever. Because that one country has made that decision, then all creative works from that country would never enter the public domain in any other country that honors that treaty.

This is a bad ruling based on a bad treaty. I really don't see how this benefits anyone.

Book burning

Back in the so called dark ages, we had book burning. Today’s modern equivalent is copyright. The correlation is like this: burning books was done to stop people from learning the truth. Today’s progress is to do the same thing using the government to make sure it and the others who control it can stop any information they want from getting out by controlling it with copyright. Sure, burning books is not the same thing, but the result is the same: keeping the masses ignorant so the powerful can continue to get away with whatever it wants.

Breyer got it right

Breyer got it right. Copyright was once a utilitarian proposition. It was only when the US joined the Berne Convention that we turned copyright into a "moral obligation to support the natural rights of authors". He also correctly noted the dangers here:

[The high administrative costs that go with determining whether something is copyrighted] can prove counterproductive
in another way. They will tempt some potential users to “steal” or “pirate” works rather than do without. And piracy often begets piracy, breeding the destructive habit of taking copyrighted works without paying for them, even where payment is possible. Such habits ignore the critical role copyright plays in the creation of new works, while reflecting a false belief that new creation appears by magic without thought or hope of compensation.

.

I'm glad someone in Washington DC gets it. Piracy is caused most of all by a lack of access. Making everything copyrighted removes such access.

Re: Re: Re: Breyer got it right

Perhaps this is partly what we are protesting.

Partly why I am protesting: Yes.

Partly why you are protesting? I don't know. Tell me.

Partly why the average person who was pursuaded to call up Congress today made their call? I am rather doubtful that we've managed to educate people on the centuries-long argument between "property" and "monopoly."

Re: Re: Breyer got it right

Ginsburg's opinion, despite the rhetoric, despite any obiter dicta, signifies a victory for the "property" foundation for copyright.

No it signifies the victory of the force majeure foundation of copyright. If the property argument was taken seriously then the restored copyrights would revert to the original creators - who sold their rights on the basis of the original term. Earlier term extensions have attempted to take this anomaly into account - the latest ones seem not to have.

This clearly shows that the court observes that not only does copyright law not violate first amendment, extension of those protections to coincide with copyright protections in other countries is lawful under the terms and amendments of the constitution. In other words, if you want to challenge copyright law it will require a constitutional amendment. This should quash further attempts to challenge the extension of copyright laws for many years to come. I am surprised they agreed to hear the case given the 6 to 2 decision.

Re:

Why would it take a constitutional amendment? It certainly wouldn't to abolish copyright altogether. Remember that the Constitution only gives congress the power to enact copyright. It does not do so, itself.

The comparison to original US national copyright law is apt; whereas before each state had different laws about what could be copyrighted and for how long, when the federal laws went into effect it caused *some* works which were public domain in *some* jurisdictions to go back under copyright. There wasn't much complaint though, because the consistency afforded by having just one set of laws was generally considered a fair price to pay.

Now look at Golan. This is the US complying with an international treaty, in which we agreed to begin respecting the copyrights of works from foreign countries whose copyright we had not previously respected, in exchange for them respecting ours, and this has caused *some* works in *our* jurisdiction to go back under copyright. A fair parallel, I think.

Let me point out something important here: Prokofiev (and three other soviet-era composers) *sued* a US company for using their works, and the US courts said 'too bad, your communist copyrights are no good; everything you make is considered public domain here.'

Yes, copyright was used as a cold-war pawn. And you know what? I think it's GOOD that we're playing nice with the Russians now.

What I'd LIKE to see, is the various national Pirate parties get their people out there to negotiate the next WIPO Copyright Treaty, and turn the term limits back down. I'd also like to see the US lower their terms down to current minimums in the meantime. But this case? I just can't work myself up over it. It's disappointing, but I can't say it's unequivocally disasterous; it's probably a fair price to pay.

Re: Re: Re:

The supreme court didn't wrongfully interpret the law. The treaty was intended to put our observation of copyrights issued in foreign lands in sync with the other country's copyright expiration. The court made the ONLY decision it could make. I still question why they even agreed to hear the case.

Re: Re:

Funny you should mention Edgar Rice Burroughs his estate part of the new and exciting field of using trademark on fictional characters from books in the public domain to collect licensing fees from derivative works that feature them. Including Tarzan and John Carter.

Re:

Perhaps it's time for you to respect the Constitution and come to the realization that the justices made the correct decision. If you want to change the length of copyrights on domestic works, contact your legislators, the SCOTUS has no power to write laws. Just because a decision doesn't come out on your side of the issue does not mean that it was a bad decision.

Resist

This decision has me so mad and depressed that I'm beginning to wonder if we should even bother continuing to hit our head against the wall with Congress and the Courts and just concentrate on nurturing cultural black-market ecosystems which are designed to ignore the law, make end runs around it and subvert copyright altogether.

I am all for a strongly-enforced copyright regime which is geared towards maximizing both the creation and distribution of new works. But if forced into a binary choice between the current system and no copyright at all (and we ARE being forced into that choice by Congress and the Courts), then I will reluctantly have to side with the no copyright forces. As radical as it is, its still less radical than the status quo in terms of the goal of maximizing the distribution of new works.

When combined with the SOPA outrage, this should be a Boston Tea Party moment (the 18th Century one - not the current incarnation). This should not be civil disobedience where we willingly offer up ourselves for punishment to make a point, but just actual disobedience where we put the onus on the government to try and forge a response to copyright infringement on such a massive scale that they will be forced to either create a totalitarian police state which brands its own people as a nation of 'thieves' for the sake of Big Content corporations, or accept an objective reality which treats infringement the same way that Barney Fife treats automobile speeding in terms of its enforcement.

But in terms of productive copyright reform coming from either Congress or our legal system? I've given up. I'll let William Patry be the one to continue wasting his time living in that fantasy land.

If Shakespeare's true identity is ever conclusively established, what are we supposed to do now when his heirs come forward, bribe Congress to once again extend the length of protection and place his writings back under copyright, and then have people forced to pay royalties or prevent people from performing his works altogether? We certainly can't rely on the Supreme Court to protect us from the scenario now.

Re: Re: Resist

Today's protest did absolutely nothing to abolish the two ruling parties oligopoly on political power so I would guess the real world impact of today's protest on the November elections will be zero. We might get another swing from one party to another in the same old song and dance we've seen for years now where we pretend we have political agency when things change in name only.

Re: Resist

Nurturing black market ecosystems will only provide fodder for copyright maximalist to use in their endeavor to further increase copyright terms. I other words, suck it up, and purchase your content. If the content creators can't point to evidence of piracy as a reason for lost revenue congress will have no reason to grant extended copyright terms.

Encouraging piracy only leads to more laws being enacted which make life harder for everyone. You may feel liberated in your endeavor, but you are harming society as a whole.

Re: Re: Resist

My Thoughts on Copyright

My opinion is the lobbying for the next copyright extension will be started in 2015 and by 2019 at the very latest a law will be passed that will be said to harmonize US copyright with Mexico's. The term will be life plus 100 or 125 for pre-1976 and work for hire works.

Re: My Thoughts on Copyright

Know your job

The problem is not that these 6 morons dont understand copyright law. Its that these 6 morons dont understand their fricking jobs!!! They are not there to say If congress wants it to be that way, it must be ok. Their job is to say when the legislative branch and the judicial branch have overstepped their mandates and passed or enforced laws that are inconsistent with existing parts of the constitution. Within the perimeters of life, liberty, and the pursuit of happiness of the general public, but with protections for the individual (minority) from the will of the majority.

With the thinking of these asshats, slavery is only a simple majority vote away from being re-established. It would make more money for the corporations (and congress) and after all, slavery (as wrong and immoral as it is) was acceptable when the constitution was written wasnt it? No, I am not pro slavery. That is an extreme example to illustrate the lack of itelligence in our government!!!!

This part of the opinion is ghastly

I don't like that they found this persuasive:

see Brief for Motion Picture Association of America as Amicus Curiae 27 (observing that income from existing works can finance the creation and publication of new works); Eldred, 537 U. S., at 208, n. 15 (noting that Noah Webster “supported his entire family from the earnings on his speller and grammar during the twenty years he took to complete his dictionary” (internal quotation marks omitted)).

This strikes at the idea that copyright is purely an incentive to create new works. Instead Ginsburg agreed that it can be a used to milk more funds from old works, in the hopes that those funds will help sponsor new works.

Re: Dissemination - Copyright vs public domain

Blech:

Our decisions correspondingly recognize that “copyright supplies the economic incentive to create and disseminate ideas.”...Considered against this backdrop, §514 falls comfortably within Congress’ authority under the Copyright Clause. Congress rationally could have concluded that adherence to Berne “promotes the diffusion of knowledge,” Brief for Petitioners 4. A well-functioning international copyright system would likely encourage the dissemination of existing and future works.

Since when, in the history of the world, has strengthening copyright ever promoted dissemination of ideas. Putting works in the public domain has always spread things faster than keeping things copyrighted.

In fact ... maybe this could be used to further the orphan work cause. Those who publish or build on abandoned software, books, etc. are clearly disseminating work that would otherwise get zero dissemination.

Dawn

Well this is sure a disappointment. The Public Domain gets raped and the rapist's name is "copyright". This only goes to prove my point that the Public Domain is only treated like left-over trash next to copyright.

I would not be too sad about this. The World is always at its darkest before the dawn breaks. Then the World is certainly changing and what is best for the public will no longer be ignored next to what makes the most profit.

Oh it's nice to see we're being honest

They also claim that since the very first copyright law took works from the public domain and gave them copyright protection, clearly there's nothing wrong with removing works from the public domain.

I don't see how this is any different than contorting copyright law into granting someone a monopoly on commercial piracy. On the other hand, if the two are differentiable today, I can't imagine I'll remain mistaken for long. I'm not sure how doing something wrong justifies doing something wrong again. Then again, this kind of shit flies all the time.

Unfortunately, the Supreme Court is not there to overturn a law just because it's incredibly stupid. Congress, alas, is not enjoined from making laws that are simply idiotic, as current copyright law certainly seems to me to be.

Unless it's actually unconstitutional, but this piece didn't really effectively argue that, in my opinion. If Congress needed to give some public domain works copyright protection in order to ensure that US works were protected abroad, that seems the seems the sort of trade-off Congress is there to make.

Correct me if I'm wrong.

First I need to say that I understand the arguement and part of me wants to agree. Normally I am all for abolishing or taking a long hard step back on copyright. However I have to disagree in this particular case. Our laws give us no rights to foreign works. These things become public works here by their good graces. The flip side is they don't have to share them with us at all. It is imperative that we adhere to their laws in this case. If their copyrights are too long then that is a fight for their citizens. We may be moving towards a smaller world than before, but this is not the world of America. We are not citizens there and have no rights to argue it. If we wish to remain in this ever shrinking world we cannot continue to piss everyone off.